IN THE CASE OF: 

		BOARD DATE:  15 April 2022

		DOCKET NUMBER: AR20210014801


APPLICANT REQUESTS: an increase in his disability rating due to post-traumatic 
stress disorder (PTSD) and traumatic brain injury (TBI).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record).

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States Code, section 1552(b); however, the Army Board for Correction of Military 
Records (ABCMR) conducted a substantive review of this case and determined it is in 
the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states he had evidence from the military and the Department of 
Veterans Affairs (VA) that his TBI and PTSD were not rated by the Army in 1995. His 
medical board was not justified in rating his conditions. His conditions are getting worse 
and the rating the Army provided “was unjustified on merit.” He fell off of a 2.5 ton truck 
on the highway at Fort Bragg, NC and sustained a head injury. He did not get rated for 
TBI at his discharge and the medical board focused solely on his right hand because it 
was the dominant hand. The medical board disregarded his headaches and nightmares 
which resulted from the accident in 1995. The applicant also references gout attacks, 
sleep apnea, diabetes type 2, and spinal fusion surgery as conditions rated by VA “due 
to head trauma injury from service.”

3.  The applicant provides no supporting documentation.

4.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 30 November 1983.

   b.  A SF 88 (Report of Medical Examination), dated 14 March 1983, shows the 
applicant was undergoing an examination for the purpose of enlistment. The applicant’s 
clinical evaluation resulted in an initial determination of “medically disqualified.” On 3 
August 1983, the applicant’s status was changed to “medically qualified.” 
	c.  His DA Form 2-1 (Personnel Qualification Record) shows he foreign service 
included:

*	Germany from 11 May 1984 to 5 November 1985
*	Korea from 13 July 1987 to 12 July 1988
*	Panama from 5 December 1989 to 24 November 1990

   d.  A DA Form 3349, dated 1 October 1993, shows the applicant was given a 
permanent physical profile rating of “3” for lower extremities due to lower back pain. The 
approval authority signed the profile on 5 October 1993 and determined the applicant 
did not require a change in his military occupational specialty (MOS) and/or in his duty 
assignment, at the time.

   e.  A Medical Evaluation Board (MEB) Narrative Summary (NARSUM), indicated a 
physical examination was performed on 6 January 1994 due to the applicant’s left lower 
back pain. It was the opinion of the MEB that the applicant was unfit for further military 
duty because of his chronic lower back pain under the provisions of Army Regulation 
(AR) 40-501, chapter 3. Final diagnoses included:

*	mild degenerative disc disease at L4-5 and L5-S1
*	bilateral severe pes planus with forefoot varus
*	bilateral shoulder rotator cuff tear, status post neer acromioplasty
*	chronic maxillary sinusitis, stable, status post-surgical drainage
*	mild reactive airway disease

   f.  A DA Form 3947 (MEB Proceedings), shows an MEB convened on 15 March 
1994, to consider the conditions referenced in the NARSUM. The applicant was referred 
to a Physical Evaluation Board (PEB) and on 18 March 1994, he concurred with the 
MEB findings and recommendation.  

	g.  The applicant provided a statement in rebuttal to the MEB NARSUM. He stated 
that he did not agree with some comments provided to include his sinusitis became 
impacted during his tour in Panama and he believed it was due to the humidity in the 
air.

	h.  On 17 March 1994, the applicant submitted a request for continued service. The 
applicant further requested to be assigned to duties that he was able to perform within 
the limitations imposed by his physical disabilities. He desired continuance instead of 
immediately evacuation and processing for disability retirement or separation action.

	i.  A DA Form 199 (Physical Evaluation Board Proceedings) shows on 30 March 
1994, a PEB convened and found the applicant physically fit. The PEB recommended 
he be returned to duty as fit. The disabling condition was listed as chronic bilateral heel 
pain, due to heel spur syndrome, Achilles tendinitis with contracture (VASRD Codes 
5099 5003). On 4 April 1994, the applicant concurred with the recommendation and 
waived a formal hearing of his case.

	j.  On 8 April 1994, Chief, Physical Disability Branch, approved the findings of the 
PEB and the applicant was determined fit for active military service.

	k.  The service record was void of the facts and circumstances surrounding the 
applicant’s most current determination for discharge.

	l.  Orders 099-0304, dated 9 April 1998, released the applicant from assignment and 
duty because of physical disability incurred while entitled to basic pay and under 
conditions that permitted his placement on the Temporary Disability Retired List (TDRL) 
with a 30% disability rating effective 13 May 1998. Orders 112-0260, amended Orders 
099-0304, by changing the effective date of retirement to 10 June 1998.

	j.  He was honorably retired from active duty on 10 June 1998. His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he completed 14 years, 6 
months, and 11 days of active service. He was assigned separation code SFK and the 
narrative reason for separation listed as “Disability, Temporary.”

5.  On 25 February 2022, the Army Review Boards Agency (ARBA) notified the 
applicant that he had to provide medical documents in support of his medical conditions.  
The applicant has not responded to date.

6.  The applicant has applied to the ABCMR and the Physical Disability Board of Review 
(PDBR) for the other medical conditions referenced in his DD Form 149. Both cases 
have been provided in the supporting documents and are available for review by the 
Board.

*	ABCMR Decision AR2007000 dated 17 January 2008
*	PDBR Decision AR2013000 dated 7 February 2013

7.  The PDBR previously considered the applicant’s right wrist, lower back, asthma, and 
gout conditions. The PDBR determined that there be no recharacterization of the 
applicant’s disability and separation determination for these conditions. As a result of 
the finality of the PDBR’s decision, the scope of the current Board’s review is limited to 
those conditions which were not considered by the PDBR.

8.  By regulation (AR 635-40), the Army disability system sets forth policies, 
responsibilities, and procedures that apply in determining whether a Soldier is unfit 
because of physical disability to reasonably perform the duties of his or her office, 
grade, rank, or rating. The regulation states disability compensation is not an 
entitlement acquired by reason of service-incurred illness or injury; rather, it is provided 
to Soldiers whose service is interrupted and who can no longer continue to reasonably 
perform because of a physical disability incurred or aggravated in military service.

9.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge, which disqualify the Soldier from further military service. The Army disability 
rating is to compensate the individual for the loss of a military career. The VA does not 
have authority or responsibility for determining physical fitness for military service. The 
VA may compensate the individual for loss of civilian employability.

10.  Title 38, United States Code, Sections 1110 and 1131, permit the VA to award 
compensation for disabilities which were incurred in or aggravated by active military 
service. However, an award of a VA rating does not establish an error or injustice on the 
part of the Army.  

11.  Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating 
disabilities. The VA awards disability ratings to Veterans for service-connected 
conditions, including those conditions detected after discharge. As a result, the VA, 
operating under different policies, may award a disability rating where the Army did not 
find the member to be unfit to perform his/her duties. Unlike the Army, the VA can 
evaluate a Veteran throughout his or her lifetime, adjusting the percentage of disability 
based upon that agency's examinations and findings.

12.  MEDICAL REVIEW:
  
The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this 
case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations:  

    a.  The applicant has applied to the ABCMR requesting additional medical conditions 
be determined to have been unfitting for continued military service prior to his 
discharge, an increase in his military disability rating, with a subsequent change in his 
disability discharge disposition from separated with severance pay to permanent 
retirement for physical disability.  He states: “My medical board was not justified in 
rating my conditions.  Currently my conditions are getting worse and with the rating the 
Army gave me was unjustified on merit.  Fell off a 2.5-ton truck on the highway at Fort 
Bragg, NC and sustained head injury and did not get rated for TBI while discharge.  The 
medical board only focused on my right hand because it was my dominant hand and 
disregarded my headaches and nightmares of this accident I endured in 1995.  Gout 
Attacks, Sleep Apnea, Diabetes Type 2, Spinal Fusion Surgery from VA due to head 
trauma injury from service.”

    b.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  His DD 214 shows he entered the regular Army on 30 
November 1983 and was placed on the Temporary Disability Retirement List on 10 
June 1998 under provisions provided in paragraph 4-24b(2) of AR 635-40, Physical 
Evaluation for Retention, Retirement, or Separation (1 September 1990). Orders show 
his temporary military disability rating was 30%.  After his TDRL reevaluation and 
informal physical evaluation board in September 2002, the applicant was removed from 
the TDRL and separated with disability severance pay in October 2002.

    c.  His request to have his gout added as an unfitting disability was previously denied 
in full on 17 January 2008 (AR2007000).  Rather than repeat their findings here, the 
board is referred to the record of proceedings for that case for this issue.  This review 
will concentrate on the new request and new evidence submitted by the applicant.

    d.  The applicant’s case was reviewed by the Physical Disability Board of Review 
(PDBR) in 2013.  Issues addressed included the applicant’s gout, asthma, right wrist 
injury, and low back pain.  PDBR’s findings dated 7 February 2013: “In the matter of the 
right wrist, back and asthma conditions and IAW VASRD §4.71a and 4.100, the Board 
unanimously recommends no change in the PEB adjudication for either TDRL entry or 
exit. In the matter of the contended gout condition, the Board unanimously recommends 
no change from the PEB determination as not unfitting.  There were no other conditions 
within the Board's scope of review for consideration.”

    e.  Their recommendation was approved by the Deputy Assistant Secretary of the 
Army Review Boards on 27 March 2013.  DoD PDBR decisions are final and the issues 
considered by the PDBR cannot afterwards be considered by the Army Board for 
Correction of Military Records.  

    f.  None of the remaining conditions (TBI related headaches, nightmares, sleep 
apnea, diabetes type 2, spinal fusion surgery) were mentioned in the applicant’s appeal 
to the PDBR.  No medical documentation for these conditions was submitted with the 
application and there are no contemporaneous encounters in AHLTA.  As such, there is 
no evidence any of these conditions would have failed the medical retention standards 
of chapter 3, AR 40-501 prior to his discharge.  Thus, there was and remains no cause 
for referral to the Disability Evaluation System.  

    g.  The applicant states and review of his records in JLV shows he has been awarded 
multiple VA service connected disabilities.  However, the DES compensates an 
individual only for condition(s) which have been determined to disqualify him or her from 
further military service.  The DES has neither the role nor the authority to compensate 
service members for anticipated future severity or potential complications of conditions 
which were incurred or permanently aggravated during their military service; or which 
did not cause or contribute to the termination of their military career.  That role and 
authority is granted by Congress to the Department of Veterans Affairs and executed 
under a different set of laws. 

    h.  It is the opinion of the Agency Medical Advisor that neither an increase in his 
military disability rating nor a referral of his case to the DES is warranted.  

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. 
Board members agreed with the medical reviewer's assessment that there is no 
evidence any of the contended conditions would have failed the medical retention 
standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was and remains 
no cause for his referral to the Disability Evaluation System. Although he has been 
awarded service-connected disability compensation, this does not mean he was unfit for 
military service. Disability compensation is provided to Soldiers whose service is 
interrupted and who can no longer continue to reasonably perform because of a 
physical disability incurred or aggravated in military service. The Army rates only 
conditions determined to be physically unfitting at the time of discharge, which disqualify 
the Soldier from further military service. The VA may compensate the individual for loss 
of civilian employability. Board members did not find evidence that supports his referral 
to the disability system. 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X:	X:	X:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.

		 
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.



REFERENCES:

1.  Title 10, United States Code, section 1552(b), provides that applications for 
correction of military records must be filed within 3 years after discovery of the alleged 
error or injustice. This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the 3-year statute of limitations if the ABCMR determines it 
would be in the interest of justice to do so.

2.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability. The U.S. Army Physical Disability Agency 
is responsible for administering the Army physical disability evaluation system and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 
(Physical Evaluation for Retention, Retirement, or Separation).

	a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical 
profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention 
Board; and/or they are command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the 
MEB and PEB. The purpose of the MEB is to determine whether the service member's 
injury or illness is severe enough to compromise his/her ability to return to full duty 
based on the job specialty designation of the branch of service. A PEB is an 
administrative body possessing the authority to determine whether or not a service 
member is fit for duty. A designation of "unfit for duty" is required before an individual 
can be separated from the military because of an injury or medical condition. Service 
members who are determined to be unfit for duty due to disability either are separated 
from the military or are permanently retired, depending on the severity of the disability 
and length of military service. Individuals who are "separated" receive a one-time 
severance payment, while veterans who retire based upon disability receive monthly 
military retired pay and have access to all other benefits afforded to military retirees.

	c.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness. In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating.  
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty. A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

3.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) establishes the Army Disability Evaluation System and sets forth policies, 
responsibilities, and procedures that apply in determining whether a Soldier is unfit 
because of physical disability to reasonably perform the duties of his office, grade, rank, 
or rating. Only the unfitting conditions or defects and those which contribute to unfitness 
will be considered in arriving at the rated degree of incapacity warranting retirement or 
separation for disability.

	a.  Disability compensation is not an entitlement acquired by reason of service-
incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted 
and who can no longer continue to reasonably perform because of a physical disability 
incurred or aggravated in military service.

	b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the 
following line-of-duty criteria to be eligible to receive retirement and severance pay 
benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.

		(2)  The disability must not have resulted from the Soldier's intentional 
misconduct or willful neglect and must not have been incurred during a period of 
unauthorized absence.

4.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness 
standards for enlistment, induction, appointment (including officer procurement 
programs), retention, and separation (including retirement). The Department of 
Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the 
VA as part of the process of adjudicating disability claims. It is a guide for evaluating the 
severity of disabilities resulting from all types of diseases and injuries encountered as a 
result of or incident to military service. This degree of severity is expressed as a 
percentage rating which determines the amount of monthly compensation.

5.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30 percent.  
Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating of less than 30 
percent.

6.  Title 38 U.S. Code, section 1110 (General - Basic Entitlement), states for disability 
resulting from personal injury suffered or disease contracted in line of duty, or for 
aggravation of a preexisting injury suffered or disease contracted in line of duty, in the 
active military, naval, or air service, during a period of war, the United States will pay to 
any veteran thus disabled and who was discharged or released under conditions other 
than dishonorable from the period of service in which said injury or disease was 
incurred, or preexisting injury or disease was aggravated, compensation as provided in 
this subchapter, but no compensation shall be paid if the disability is a result of the 
veteran's own willful misconduct or abuse of alcohol or drugs.

7.  Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic 
Entitlement) states for disability resulting from personal injury suffered or disease 
contracted in line of duty, or for aggravation of a preexisting injury suffered or disease 
contracted in line of duty, in the active military, naval, or air service, during other than a 
period of war, the United States will pay to any veteran thus disabled and who was 
discharged or released under conditions other than dishonorable from the period of 
service in which said injury or disease was incurred, or preexisting injury or disease was 
aggravated, compensation as provided in this subchapter, but no compensation shall be 
paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol 
or drugs.

8.  Department of Defense Instruction (DODI) 6040.44 (Physical Disability Board of 
Review (PDBR)) designates the Secretary of the Air Force as the lead agent for the 
establishment, operation and management of the PDBR for the DOD.

     a.  The PDBR reassesses the accuracy and fairness of the combined disability 
ratings assigned former service members who were separated, with a combined 
disability rating of 20% or less during the period beginning on 11 September 2001 and 
ending on 31 December 2009, due to unfitness for continued military service, resulting 
from a physical disability.

     b.  The PDBR may, at the request of an eligible member, review conditions identified 
but not determined to be unfitting by the PEB of the Military Department concerned.

     c.   As a result of a request for PDBR review, the covered individual may not seek 
relief from the Board for Correction of Military Records operated by the Secretary of the 
Military Department concerned.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210014801


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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